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Why NOT Supporting Safe Schools Can Be Expensive

Expensive Reasons, documents fifteen cases that have been brought against school districts for failing to protect students from discrimination on the basis of sexual orientation. These cases illustrate the following:

School districts can be held liable under existing federal law for failing to protect students from harassment based on sexual orientation and gender nonconformity.

Without clear directives from their state legislature, many school districts have failed to protect students from harassment and discrimination, putting themselves at risk for potential legal liability.

In all of the cases brought to date, the student either prevailed after trial or achieved a settlement.

STATE LEGISLATION PROTECTS STATES, SCHOOL DISTRICTS AND STUDENTS

At a time in which fiscal discipline is critical to preserve statewide education priorities, the cost of avoidable lawsuits against a school district for failing to protect their students from anti-lesbian, gay, bisexual and transgender (LGBT) harassment and discrimination can hinder both school district and state budgets. Passing, effectively implementing, and enforcing state laws that clearly prohibit discrimination and harassment on the basis of real or perceived sexual orientation and gender identity can help school districts avoid these expensive lawsuits. It can also help districts in fulfilling their general mission -- to provide a safe and effective education for all of their students.

SCHOOLS' EXISTING OBLIGATIONS UNDER FEDERAL LAW

Whether or not a state or a school district has an LGBT-inclusive law or policy, all public schools have obligations under federal law to protect students from anti-LGBT harassment and discrimination. The growing list of cases, some of which are included below, explicitly illustrate this point.

A school district and its employees may be held liable under the Equal Protection Clause of the federal Constitution for failing to protect students from anti-LGBT harassment. If a school official fails to take action when they learn of such harassment because they think that an LGBT student should expect to be harassed, or that the student provokes the harassment by being openly LGBT, then the school has failed to provide equal protection to the student. Likewise, school officials violate the Equal Protection Clause if they fail to provide the same level of protection against harassment to boys and girls, and to LGBT students and non-LGBT students.

In addition, Title IX, a federal law that applies to all schools that receive federal money, already requires schools to ensure that students are not sexually harassed. While Title IX does not explicitly prohibit discrimination on the basis of sexual orientation, it does prohibit harassment directed at an LGBT student that is sexual in nature. Title IX also prohibits harassment based on perceptions that a student does not conform to stereotyped notions of masculinity and femininity.

FOR MORE INFORMATION ON CRAFTING EFFECTIVE STATE LAWS:

Effective guidance from the state legislature can help to ensure that schools and school districts meet their obligations under federal law, avoid costly and unnecessary lawsuits, and provide educational environments where all students can learn. The Gay, Lesbian and Straight Education Network and the National Center for Lesbian Rights, can help.